APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Defendant Fred Richmond was indicted and tried for burglary, theft, and possession of burglary tools. (Ill. Rev. Stat. 1971, ch. 38, pars. 19-1, 16-1, 19-2.) A jury found defendant guilty and he was sentenced to concurrent terms of 4 to 12 years' imprisonment for burglary and 1 to 3 years' imprisonment for possession of burglary tools. Defendant contends on appeal: (1) that he was not proven guilty beyond a reasonable doubt on each of the three crimes charged; and (2) that he was denied a speedy trial in violation of section 103-5 of the Code of Criminal Procedure, which provides:
"Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *." Ill. Rev. Stat. 1971, ch. 38, par. 103-5(a).
On June 28, 1973, Henry Kowitz, the building engineer for a residential building located at 2007 North Sedgwick in Chicago, received a telephone call at approximately 6 a.m. alerting him that prowlers were in the basement garage of the building. Kowitz proceeded from his apartment inside the building to the lower level garage armed with a revolver. Once he entered the floor of the parking area, Kowitz discovered the defendant standing at the rear of a Dodge van. When Kowitz inquired into the reason for defendant's presence in the garage, the defendant replied that he was looking for a doctor. At that moment, the overhead garage door opened and Kowitz heard someone escape from the opposite end of the inside parking area. Kowitz held the defendant by gunpoint until the police arrived.
Five tenant-owned bicycles, taken from a bicycle rack located in the garage, were found in the rear of the van. The lock chain which winds through the bicycle wheels parked at the rack had been cut. Kowitz found that the door frame of the front entrance to the garage had been chiseled allowing entry without a key. Kowitz testified that no doctor lived in the building on the day of the occurrence. However, Kowitz admitted during cross-examination that a doctor had lived in the building at a previous time.
John Murray and Walter Newton were the Chicago police officers to first arrive on the scene. The defendant told Officer Murray that he lived at 114th Street and Bensley in Chicago and that he was looking for a doctor. The officers found the following items inside the front seat area of the van: a 12-inch bolt cutter, a tire iron, a black glove, and an ignition switch which had been pulled out from the dashboard. The items were properly identified and introduced into evidence. Parked in the garage was a brown van with the name "Beacon House" marked on its side.
Coleman Miller, a social worker and director of the Beacon Neighborhood House, testified that the brown, 1973 Dodge van was owned by the Beacon House corporation. The marking on the van's side read, "Beacon Neighborhood House, 1440 South Ashland Avenue, Chicago, Illinois CH 3-8100, Mrs. Ruby Robinson." On June 27, 1973, one of the employees of Beacon House parked the van at a service station located on Paulina Avenue and Washington Street at approximately 6 p.m. The service station was the van's normal parking place. The employee locked the van and retained possession of the keys. On June 28, 1973, Coleman identified the van at the police station on Chicago Avenue. The side vent glass on the driver's door had been forced open, and the ignition switch was found dangling by its wires from the dashboard.
Defendant's arrest occurred June 28, 1973. He was indicted on August 4, 1973, and arraigned on August 13, 1973. On the day of defendant's arraignment, the cause was assigned to Judge White for trial by the Presiding Judge of the Criminal Division, Judge Power. Defendant filed a petition for a substitution of judges before Judge White and the petition was granted. The cause was returned to Presiding Judge Power, who reassigned it to Judge Strayhorn for trial. The reassignment was completed on August 13, 1973. The cause was continued to the following day, August 14, 1973, pursuant to defendant's motion.
The State and defendant exchanged discovery motions on August 14, 1973. The cause was subsequently continued on three separate occasions by order of court until November 29, 1973. Defendant thereupon sought discharge on the ground that he had not been brought to trial within the 120-day period prescribed by section 103-5 of the Code of Criminal Procedure. The trial court denied defendant's request for discharge on the ground that defendant's motion for substitution of judges tolled the 120-day period on August 13. Trial commenced December 10, 1973, 118 days after the start of a new period.
Defendant contends that the tolling of the 120-day period denied his right to a speedy trial. He argues that no actual delay resulted from his motion for substitution of judges because the assignment and reassignment of judges was completed on the same date with 75 days remaining in the 120-day period. Moreover, defendant claims that his statutory right to substitute judges is compromised if delay is attributed to him as a result of his motion.
• 1-4 Section 103-5 of the Code of Criminal Procedure implements the right to a speedy trial and operates to prevent the constitutional question from arising except in cases involving prolonged delay or unusual circumstances. (People v. Baskin, 38 Ill.2d 141, 144, 230 N.E.2d 208, 210.) The right to a speedy trial and the right to avoid a prejudicial trial are "separate but related rights" which must be balanced with society's interest in the fair administration of justice. (People v. Johnson, 45 Ill.2d 38, 43, 257 N.E.2d 3, 7.) The accused may always exercise his right to avoid a prejudicial trial by electing to substitute judges. (Ill. Rev. Stat. 1965, ch. 38, par. 114-5.) However, the election "starts anew the administrative procedure" of bringing the accused to trial. (People v. Spicuzza, 57 Ill.2d 152, 155, 311 N.E.2d 112, 114.) Since the question was first considered, our Supreme Court has repeatedly held that the tolling of the 120-day period for the purpose of insuring ample time for the case to be scheduled for trial on a new judge's calendar is not a denial of the accused's right to a speedy trial. (People v. Iasello, 410 Ill. 252, 102 N.E.2d 138; People v. Rankins, 18 Ill.2d 260, 163 N.E.2d 814.) To hold otherwise would ignore the practical administrative problems in the criminal division which has compelled the utilization of a balancing concept by the decisions of this court and the Supreme Court. Those decisions directly refute the proposition that a motion for substitution of judges does not necessarily cause a delay attributable to the defendant.
In People v. Nowak, 45 Ill.2d 158, 258 N.E.2d 313, the defendant moved for a substitution of judges on January 7, 38 days after he had been taken into custody. On the day following his motion, January 8, defendant was reassigned to a new judge who set trial on the same date which had been designated by the first trial judge. The Supreme Court held that the motion for substitution of judges tolled the 120-day period under facts similar to those in the instant case. The court rejected defendant's argument that no delay resulted from the motion with the following statement:
"Rosochacki's motion for a change of venue on January 7 made it necessary to send the case back to the presiding judge for reassignment and reopened the question of a trial date. Defendant argues that there was no delay because the date fixed for trial after the case had been assigned to Judge Healy was the same as that which had been set by Judge Plusdrak. The fallacy of this argument becomes apparent when we remember that the selection of a date before Judge Healy was entirely dependent on the schedule of other cases in his court. The fortuitous circumstance that the same date happened to be available does not change the true nature of the initial proceedings before Judge Healy which involved the selection of a trial date as the first item on the agenda." 45 Ill.2d 158, 166.
In People v. Zuniga, 53 Ill.2d 550, 293 N.E.2d 595, the defendant was arraigned and assigned to a trial judge on October 28, 11 days after being taken into custody. On November 7, defendant moved for a substitution of judges and on the same date a new judge was assigned to the cause. With facts similar to those in the instant case, the Supreme Court held that the 120-day period was tolled by defendant's motion for a substitution of judges:
"In any event, the cases lost whatever seniority status they had acquired on this judge's calendar and had to be returned to the presiding judge for reassignment to another trial judge. The defendant's cases then assumed their position on that judge's calendar, presumably at the bottom of the list of pending cases. Without knowing the exact condition of each judge's calendar and length of time required to dispose of each case thereon it is impossible to state whether the motion for a substitution of judges actually delayed bringing the defendant's cases to trial or advanced them as the appellate court found. We do know that the motion and reassignment started anew the administrative procedure of bringing the defendant's cases to trial. The mere fact that the defendant had his cases advanced from November 28 to November 7 for the purpose of presenting his motion does not distinguish this ...